Legal Insights: Is the European Commission Responding to Anti-Competitive Conduct?

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On 22 June 2021, the European Commission announced that it has opened a formal antitrust investigation to assess whether Google has violated EU competition rules (Article 101 and Article 102 TFEU) by favouring its own online display advertising technology services in the “Ad tech” supply chain. The investigation will also look into whether Google’s conduct amounted to the detriment of competing providers of advertising technology services, advertisers and online publishers. 

Article 101 of the Treaty of the Functioning of the European Union (TFEU) prohibits anti-competitive agreements and decisions that prevent, restrict or distort competition within the EU’s Single Market. Article 102 of the TFEU prohibits the abuse of a dominant position. 

The European Commission’s investigation will specifically examine whether Google is distorting competition by restricting access by third parties to user data for advertising purposes on websites and apps, while reserving the data for its own use.

Margrethe Vestager, Executive Vice-President, who is in charge of competition policy stated that:

“Online advertising services are at the heart of how Google and publishers monetise their online services. Google collects data to be used for targeted advertising purposes, it sells advertising space and also acts as an online advertising intermediary. So Google is present at almost all levels of the supply chain for online display advertising. We are concerned that Google has made it harder for rival online advertising services to compete in the so-called ad tech stack. A level playing field is of the essence for everyone in the supply chain. Fair competition is important – both for advertisers to reach consumers on publishers’ sites and for publishers to sell their space to advertisers, to generate revenues and funding for content. We will also be looking at Google’s policies on user tracking to make sure they are in line with fair competition.”

In particular, the Commission’s investigation will focus on:

  • The obligation to use Google’s services Display & Video 360 (‘DV360′) and/or Google Ads to purchase online display advertisements on YouTube.
  • The obligation to use Google Ad Manager to serve online display advertisements on YouTube, and potential restrictions placed by Google on the way in which services competing with Google Ad Manager are able to serve online display advertisements on YouTube.
  • The apparent favouring of Google’s ad exchange “AdX” by DV360 and/or Google Ads and the potential favouring of DV360 and/or Google Ads by AdX.
  • The restrictions placed by Google on the ability of third parties, such as advertisers, publishers or competing online display advertising intermediaries, to access data about user identity or user behaviour which is available to Google’s own advertising intermediation services, including the Doubleclick ID.
  • Google’s announced plans to prohibit the placement of third party ‘cookies’ on Chrome and replace them with the “Privacy Sandbox” set of tools, including the effects on online display advertising and online display advertising intermediation markets.
  • Google’s announced plans to stop making the advertising identifier available to third parties on Android smart mobile devices when a user opts out of personalised advertising, and the effects on online display advertising and online display advertising intermediation markets.

The European Commission has stated that it will carry out its in-depth investigation as a matter of priority. 

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